Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
With the vast increase in the use of social media platforms there has been a commensurate increase in the number of advertisers using them to reach consumers. Broadly speaking the ASA considers complaints about ads on social media sites in the same manner as those in more traditional formats. Marcoms must obviously not be misleading or offensive and should allow consumers to make an informed decision regarding the product but the issue of whether the commercial nature of the marcom is clear warrants particular attention.
The ASA considered a complaint about two ads for Nike that were posted on Twitter from the official accounts of Jack Wilshere and Wayne Rooney. These tweets set out the footballers’ resolutions for 2012 and included the hashtag ‘#makeitcount’ and the URL ‘gonike.me/makeitcount’ but made no other reference to the advertiser. Because the footballers concerned sent both personal messages as well as marketing communications they sent as a result of their sponsorship deal with Nike, the ASA considered the tweets did not make sufficiently clear that they were marketing communications (Nike UK Ltd, 20 June 2012). Similarly the ASA received a complaint about a tweet by Gemma Collins, on behalf of Toni and Guy, which made reference to her satisfaction with their service and offered consumers a discount. As the tweets appeared to have been written on a spontaneous visit to the salon, and did not contain a clear identifier such as ‘#ad’, the ASA considered that they were not obviously identifiable as marketing communications and the complaint was therefore upheld (Toni and Guy (Lakeside) Ltd, 11 July 2012).
Another complaint was received about a further tweet from Wayne Rooney on behalf of Nike. This tweet stated "The pitches change. The killer instinct doesn't. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1". The complainant again challenged whether the tweet was obviously identifiable as a marketing communication. The ASA considered that the content of the tweet followed by "@NikeFootball" and "#myground" meant the tweet was obviously identifiable as a marketing communication and therefore the complaint was not upheld (Nike (UK) Ltd, 4 September 2013).
Complaints were also received about tweets posted from the official accounts of Rio Ferdinand and Katie Price on the grounds that they were not obviously identifiable as marketing communications. The tweets in question each formed a chain of five, with the first four tweets containing out of character comments for the celebrities, followed by a fifth ‘reveal’ message that showed an image of the celebrity with a Snickers chocolate bar and the text “You’re not you when you’re hungry @snickersUk #hungry #spon”. The ASA noted that there was no commercial message or call to action in the first four tweets and all five tweets were posted within about an hour. It considered that the combination of the timing, the content and the context of the campaign was sufficient to make clear the tweets were advertising and that consumers would then understand each series of tweets was a marketing communication (Mars Chocolate UK Ltd, 7 March 2012).
Because some consumers have less experience with advertising hosted on social media sites, and advertising is often difficult to distinguish from genuine user generated content, marketers should pay particular attention to ensuring their marketing communications are obviously recognisable as such. Keith Chegwin tweeted regarding a sales promotion for Publishers Clearing House. The tweet stated "Just a quickie: Log on to pchprizes.co.uk 4 Your chance 2 win £100k plus Win £2,500 a week 4 life. Have a go X". A member of the public challenged whether the tweet was a marketing communication and should therefore be identified as such. The ASA noted that Keith Chegwin had not been required or invited to tweet on PCH’s behalf but they considered that his contractual obligation to promote the company, and this promotion in particular, meant that the tweet constituted part of PCH’s promotional activity and was therefore advertising. They considered that as the Code required marketing ‘must be obviously identifiable as such’ an identifier such as #ad should have been included in the tweet and concluded in its absence that the tweet breached the Code (Genting Alderney Ltd t/a Publishers Clearing House, 9 January 2013).
The ASA Council have also been asked to consider various other questions regarding remit and social media. A journalist tweeted about an article that she had written for The Times and provided a link to it. If one of her followers subsequently clicked on this link they were taken to an excerpt from the article and a pay wall, where the follower was required to take out a subscription to The Times in order to finish reading the article. The Council were asked to decide whether this constituted a marketing communication for the purposes of the Code. Although the Council recognised that both the journalist and the paper could benefit from an increase in the number of people subscribing to the paper, they also considered the fact that the journalist was under no contractual obligation to promote the paper and that the paper had no control over the content of the journalist’s tweets. In light of this they decided that the tweet was not a marketing communication for the purposes of the Code and was therefore outside its remit.
Advertisers should bear in mind that claims such as "UK's leading online directory" will require relevant substantiation whatever the medium through which they are made (192.com Ltd, 20 November 2013).